The Basics

Parenting Disputes

Urgent or Non-Urgent

Family lawyers will ask in a first consultation whether a client has parenting concerns because parenting disputes often take priority. Parenting disputes are not always a 5-alarm fire type situation, but sometimes they are and action must be taken immediately. In some cases, we must schedule an urgent conference or motion to deal with pressing parenting issues immediately, but in many other cases, we negotiate a parenting plan or refer clients to mediation. We need to know as early as possible if the children’s issues need to be addressed so we can take steps to alleviate difficulties in the short and longer term.

Best Interests of the Child

All professionals who work in the family law sphere (ie: lawyers, judges, psychologists and counsellors), have an obligation to focus on the best interests of the child(ren). Separating parents often have different ideas about what should be done with respect to parenting time and decision making, but the guiding principle for any of these disputes is an objective one which is focused on the child. In family law matters you’ll hear the term “best interests of the child” referenced quite a lot.

What is in the best interests of the child may not be easy to determine or agree upon. It is defined in the Divorce Act[1], and the Children’s Law Reform Act[2] for the purposes of determining parenting time and decision making. It includes consideration of a child’s physical, emotional and psychological safety, security and well-being. To determine best interests in a particular case, there are a long list of factors (listed in the Divorce Act) that a judge must take into account.

The best interests test permeates quite a lot of what we do in family law. For example, if a Court finds that a provision of a domestic contract is not in a child’s best interests, the Court may disregard that provision even though the parties thought it was reasonable.[3] Parents may each put forward a position regarding parenting terms which they believe are reasonable and a judge may instead order a solution which is different than what either party requested.

The Term “Custody” is No Longer in Use

Many people come to the family law process wanting to understand more about “custody” of children. It’s important to know that we don’t use the word “custody” anymore in Ontario.[4] There was always confusion about this term and what it meant. Also, the term was a lightening rod for disputes. It inflamed people and caused unnecessary conflict so there were amendments in 2020 to eliminate that term completely from the relevant Ontario legislation.

Now things are much simpler and clearer. Instead of deciding who has “custody” when parents separate, instead we focus on:

how decisions will be made for the children; and.
how parenting time will be divided between parents.

There is a lot that can be said about disputes relating to parenting time and decision making, which will be covered in other posts. For now, it’s useful to know that if you are separating you need to agree upon these two issues with your former spouse as well as potentially many other issues. This could be straightforward for some people, or it could become a multi year court battle. The amount of time and money it takes to resolve these issues varies greatly depending on the issues and conflict.

Parenting Plans

If you are wondering what a parenting plan for separated spouses looks like or are seeking to develop a plan for your family, you can find an extremely helpful Guide and Template from the Association of Family and Conciliation Courts (AFCC).

The AFCC Parenting Plan Guide and Template are often used by lawyers, mediators, judges and parents themselves. These materials can help, for example, if there is a need for a written agreement regarding the division of parenting time for a certain age range of children. A parenting schedule for an infant will look very different than a schedule for a teenager. Parenting plans cover a vast range of issues such as holiday time, decision making for health, education and religion. While it isn’t a hard and fast rule, we find that the greater the conflict between separating spouses, the greater the need for a very detailed parenting plan. Having a plan in place ensures less confusion and these plans often include an Alternative Dispute Resolution[5] mechanism for addressing disputes quickly. If you are separated and trying to understand how to address the issues of parenting, this is an excellent place to start.

About the Author

Julie Stanchieri is a family lawyer with more than two decades of experience representing clients in all areas of family law, in both court proceedings and out-of-court resolutions. She is the founding partner of Stanchieri Family Law, a boutique firm established in downtown Toronto in 2008. Julie holds a Master of Laws (LL.M.) in Family Law from Osgoode Hall Law School and a Bachelor of Laws (LL.B.) from the University of Toronto. In addition to her legal practice, she is an accredited mediator and arbitrator, and a frequent speaker and author on family law issues.

Footnotes
  1. R.S.C., 1985, c. 3 (2nd Supp). (see s. 16) Applicable for parents who are married and separating. ↩︎
  2. R.S.O. 1990, c. C.12. (see s. 24) Applicable for parents who are not married and separating. ↩︎
  3. See s. 56 (1) of the Family Law Act, R.S.O. 1990, c. F.3 ↩︎
  4. This change in terminology has also been implemented at the federal level in the Divorce Act ↩︎
  5. Typical ADR clauses will include an agreement to attend mediation and/or arbitration in the event of a future parenting dispute. ↩︎
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